Defendants appeal from judgments of conviction for the unlawful sale of narcotics, based upon a jury verdict rendered in a trial consolidated by stipulation. Each defendant was sentenced to not less than ten nor more than eleven years in the penitentiary.

The principal issue raised is a claim of entrapment. (Ill Rev Stats 1967, c 38, § 7-12.) Defendants also claim error in the failure to afford them a preliminary hearing; in the refusal of a tendered instruction bearing on the effect of the failure of the State to call an informer as a witness; and in the denial of a motion for a new trial based upon alleged newly discovered evidence.

The fact of sale of marijuana by defendants on December 16th, 1968, is not disputed. The defense of entrapment is based upon claimed activities of one Nicholas Cadena, an informer in the service of the State.

From the testimony of defendants it was adduced that the defendant Oscar Mata had made a trip to Texas in July of 1968, and had there picked and returned with approximately six pounds of marijuana for the common supply of both defendants. From time to time, the defendants had smoked marijuana in the presence of each other, but had not given or permitted anyone else access to the supply.

Lino Gonzales testified that he and his wife customarily attended dances sponsored on behalf of a Spanish speaking community in Aurora by Cadena. He stated that on these occasions Cadena would frequently approach defendants with inquiries about possible sources of marijuana available for sale. Defendants said that they did, on each of some three occasions, refuse to discuss the matter. In one instance Cadena allegedly gave Gonzales a marijuana cigarette to smoke. Mata testified that on one occasion he had been asked by Cadena to go to Texas to procure marijuana for him, but that he also refused.

Gonzales testified that on December 16th, 1968, without prearrangement, Cadena and one Kenneth Cloud, a government narcotics agent, drove to his home; that Cloud remained in the car and Cadena approached Gonzales to again discuss purchasing marijuana, and that he refused to enter into the discussion; that Cadena advised him that a "new car" and "money in your pocket" was available if he would consider engaging in marijuana sales. It appeared that Gonzales was a factory worker supporting himself, his wife and six children on $92 a week, and lived in a substandard dwelling. At this suggestion, on December 16th Gonzales proceeded to the car in which Cloud was waiting. While in the automobile, Cadena introduced Cloud as a narcotics peddler and allegedly advised defendant in Spanish that a "house and car" were available for him by trafficking in marijuana.

The three persons proceeded to defendant Mata's home. There Cadena offered to purchase the remainder of the supply for $80 a pound. Mata refused this offer, but Cadena made various counteroffers and a price was agreed upon. The defendants divided the money.

Cloud testified for the State. He related that he, with agents Jordan and Nolan, drove to Aurora on December 16th. The three met Cadena. They knew him as an informer who had given information to the State's Attorney. Only Jordan had seen Cadena before. Cadena was not a government agent and received no compensation for services in the matter. They searched Cadena for money or marijuana, marked $600 in bills which the agents retained for the possible purchase of marijuana. Cloud drove an unmarked government car to the home of the defendant Gonzales with Cadena as his passenger; the other agents followed in another car. There Cadena went to Gonzales' residence and brought him out to the car. Cloud and Cadena were in the front seat, Gonzales in the rear. Cadena introduced Cloud to Gonzales and Cloud gave his name as "Chuck" and said he trafficked in marijuana for resale in Chicago and was interested in good marijuana for resale.

Cloud testified that Gonzales then responded, "Okay. First let's go see Oscar." The three drove to where Mata was working on his car. Gonzales called to Mata who then got in the back seat with him. The offer to purchase marijuana was made by Cloud to Mata. Mata left and returned from his home with a sample in an envelope which he gave to Cloud. The defendants talked to each other, partly in Spanish, partly in English, until they finally agreed on the price. Cloud admitted that he did not understand Spanish.

The defendants drove away in Mata's car and returned after a short interval and drove alongside Cloud, facing in the same direction. Through the open windows of the cars Gonzales handed Cloud a grocery bag containing the marijuana and Cloud handed Gonzales $400 in marked funds which Gonzales, in turn, handed to Mata. Cloud testified that he did not see the defendants thereafter until the trial.

Agents Jordan and Nolan testified to seeing the delivery of the marijuana and exchange of the money in corroboration of Cloud's testimony. Nolan testified that he followed defendants to a cafe and went in alone to observe them.

The testimony of defendants relating to the delivery of the marijuana and subsequent events conflicted with the State's testimony in numerous respects. Defendants testified that Cadena was driving his car and Cloud was the passenger; that Cadena turned over $500 before defendants drove away to get the marijuana; that Cadena had only the $400 and secured the additional $100 from Cloud; that they met Cloud later at a cafe and gave him back $160 because he complained of the quality of the marijuana. Defendant Mata testified that he drove alongside of the car in which Cadena was driving but in the opposite direction, and that he handed the grocery bag to Gonzales who handed it across to the other car, directly to Cloud in the passenger seat.

Defendants argue that the mere possession and use of narcotics by defendants without more did not constitute evidence of a predisposition to sell narcotics; therefore, that the origin of the sale was to be found in the persuasions and inducements offered by the informant Cadena and by the government agents. They urge that, having offered the affirmative defense of entrapment, the State then had the burden of proof and that it failed to negate the defense beyond a reasonable doubt. The ...

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